Saturday, February 28, 2009

Invoked the "What Geneva Conventions?" Defense Lately?

Last night I finally got around to watching "Torturing Democracy," a documentary that appeared recently, albeit slowly and controversially on PBS stations after the election.

It was shocking and I highly recommend it, especially in light of yesterday's news that the Court of Appeals for the Ninth Circuit has rejected the Bush and now Obama Administration's position that the case could not go forward because of the threat of "State Secrets" being released. Glenn Greenwald and Marcy Wheeler both describe the background of that case and Monday should be an interesting day as Judge Vaughn Walker, assuming that an appeal is not filed by the Obama administration with the Supreme Court, will likely rule that the wiretap of communications between Al-Haramain (a now dissolved Islamic fund raising organization) and its Oregon lawyers was in clear violation of the law. As Marcy notes:

Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal. I will, quite literally, be holding my breath on Monday, but Walker may well beat any games from Obama.

I encourage everyone to watch the documentary. I plan on watching it again since it was late when I watched it and, with Sam Adams and a bowl of popcorn beside me, I dozed off a few times as it was a long week.

But there was one line from the narrator that stood out. In a documentary that features interviews with many criminal defense lawyers who are standing up against the outrageous policies practiced at Gitmo and elsewhere, wouldn't you think a little respect for criminal defense attorneys would be in order?

While I'm never truly surprised when people criticize criminal defense attorneys, I didn't expect it in the middle of a PBS doc about how the Bush administration worked the "dark side" and ultimately ended up not only ignoring but blatantly violating the Geneva Conventions, international law and federal statutes that criminalize torture.

Here's the exchange that woke me up:

NARRATOR: In Washington, Secretary of State Colin Powell – the most experienced military man among the President’s top advisers – stepped up his defense of Geneva’s half century of war-fighting rules.

RICHARD ARMITAGE: We were trying to wrestle with how to fight both an enemy and
an idea, and I think came up with a wrongheaded solution - opting out of Geneva. We,
after all, want our soldiers, should they be unfortunate enough to be captured, to be
treated in a proper way. And yet, we weren't willing to afford that to others. That seems a little counter-intuitive to me. It did at the time, and it does now.

NARRATOR: Before the Secretary of State could make his case to the President
personally, he was undermined by the Vice President. In a blunt memo written by
Cheney’s counsel, David Addington – but delivered by White House Counsel Alberto
Gonzales – Bush was advised that the war on terror: “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners”.

NARRATOR: And in an argument that could have been written by a criminal defense
lawyer, the President was told that opting out of the Geneva Conventions:
“substantially reduces the threat of domestic criminal prosecution under the War
Crimes Act

RICHARD ARMITAGE: If you were twisting yourselves into knots because you're
fearful that you may be avoiding some war crimes, then you're probably tripping too
closely to the edge.

Let's break down that sequence:
1. Two former military men, Powell and Armitage, fought against violating Geneva.
2. Cheney and Addington, via Gonzo, undercut these former military men, telling W that Geneva is not only "quaint" but inapplicable.
3. Bush is further told that claiming Geneva does not apply "reduces the threat" that anyone could be prosecuted for war crimes for treatment of detainees.
4. This is the sort of argument that "criminal defense lawyers make."

Perhaps the point the writers are trying to make is that this laughable justification is the role criminal defense lawyers often find themselves in, trying to convince a fact finder that black is white, but it seemed an odd place to imply that "criminal defense lawyers" are similar to Addington, Cheney and former judge and Attorney General Alberto Gonzales.

The documentary goes on to describe how important John Yoo's memos were to these justifications as they allowed the other players to operate with a stamp of approval granted by a prosecutor, as Yoo was a Deputy Attorney General at the time.

It's possible that the authors were implying that the parties' criminal defense lawyers might later be in a terrible position in trying to justify these actions and might be forced to resort to arguing that the President's decision to "opt out" of Geneva meant that war crimes prosecutions were inappropriate against those who carried out the President's orders.

But, considering that they were describing Cheney, Addington, Yoo and Gonzales' laughable position that the President could simply ignore the Geneva Conventions and that doing so could also protect Americans from possible prosecutions at the Hague, it seemed a ridiculous time to imply that "criminal defense lawyers" are the typical proponents of these positions.

Had any luck in court lately advocating that your clients can't be prosecuted because the Unitary Executive retains that Constitutional Authority to render international treaties void?

What, that isn't what we do?

Monday, February 16, 2009

Equality Before the Doctor?

NPR reported yesterday that Justice Ginsburg's chances of surviving pancreatic cancer are much better than most of those who suffer from it because doctors ignored an initial test that showed a benign tumor and pushed on to discover cancer in her pancreas. I thought good for them. I also wondered if they would they have done such a test if under pressure from an HMO, if they were only receiving medicare payments, if they were performing the same test on you or me?

Hearing about pancreatic cancer again made me remember that last year, the criminal defense bar lost a true champion, Don Fiedler, to it. He dedicated his life to criminal defense, teaching each year at the National Criminal Defense College and sponsoring scholarships for young lawyers to attend the college in Macon, GA each summer. I wouldn't have gotten there if not for his help and I doubt that anyone from Nebraska would have done so either. (I don't know how many NCDC grads now live here, but I think it's close to 20!)

I know it's useless to ask such questions, but hearing the report about Justice Ginsburg, made me wonder if such rigorous tests would have made a difference for Don. I also wondered if any of Don's clients, or mine, would have had access to basic tests for cancer? Or how many have access to health insurance at all?

Atticus Finch said that "We know all men are not created equal in the sense some people would have us believe--some people are smarter than others.. But there is one way in this country in which all men are created equal--there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court."

But those who sit on the Court, under the banner of equality under the law, enjoy access to elite-level health care while millions lack access to the most basic kind. Sadly, an old phrase rings true, at least among industrialized countries: Only in America.

It's terribly sad that, for Justice Ginsburg, despite the "luck" of an early diagnosis, has only increased her chance of surviving it to around 50%. Still, it's even more sad to consider how many people's chances of surviving it are increased because they have no health insurance and no chance to speak to a doctor until their symptoms bring them into the emergency room, and "treatment" becomes nothing but a pain killer.

Saturday, February 14, 2009

You say you want a revolution?

Here's one way to get there. Billmon at Daily Kos, as pointed out by Glenn Greenwald, asks a very interesting question about these two headlines from the Washington Post on Thursday:

1. Lawmakers' Goal to Cap Executive Pay Meets Resistance

"Congressional efforts to impose stringent restrictions on executive compensation [at government-subsidized banks] appeared to be evaporating yesterday as House and Senate negotiators worked to fine-tune the compromise stimulus bill."

2. Employers Fighting Unemployment Benefits

"It's hard enough to lose a job. But for a growing proportion of U.S. workers, the troubles really set in when they apply for unemployment benefits.

More than a quarter of people applying for such claims have their rights to the benefit challenged as employers increasingly act to block payouts to former workers."

After noticing the irony of these two headlines, Billmon understandably asks:

Someone please explain to me why we haven't had a revolution in this country yet, because I don't fully understand it -- given that our political and business elites both seem to have a death wish bigger than Marie Antoinette's.

Feds to Sheriff Joe: "Law Enforcement ... not a reality show"

I read a lot of good criminal law blawgs and rarely miss anything by Emptywheel, who writes at Firedoglake. Today, Marcy Wheeler's occasional co-blogger, Bmaz, writes about Maricopa County, Arizona (Phoenix) Sheriff Joe Arpaio:

You have probably heard of the shamelessly self professed "Toughest Sheriff in America", Maricopa County Arizona Sheriff Joe Arpaio. For years he has been making a PR spectacle of himself, all the while running an unconstitutionally deplorable jail system, letting inmates die under tortuous conditions, and violating the civil rights and liberties of everybody in sight, especially minorities. Today, the House Judiciary Committee made public a critical and public step to rein in the Most Abusive Sheriff In America.

Bmaz goes on to quote from a letter sent from the House Judiciary Committee to former Arizona Gov. Janet Napolitano and Attorney General Eric Holder:

Sheriff Arpaio has repeatedly demonstrated disregard for the rights of Hispanics in the Phoenix metropolitan area. Under the guise of immigration enforcement, his staff has conducted raids in residential neighborhoods in a manner condemned by the community as racial profiling. On February 4, 2009, Arpaio invited the media to view the transfer of immigrant detainees to a segregated area of his "tent city" jail, subjecting the detainees to public display and "ritual humiliation." Persistent actions such as these have resulted in numerous lawsuits; while Arpaio spends time and energy on publicity and his reality television show, "Smile… You're Under Arrest!", Maricopa County has paid millions of dollars in settlements involving dead or injured inmates.
It is time for the federal government to step in and uphold the rule of law in this country, even in Maricopa County."

"Law enforcement is not a game or a reality show, it is a public trust," said Scott. "There is no excuse for callous indifference to the rights of the residents of Arizona, whether in their neighborhoods or as pretrial detainees."

This isn't a knock against law enforcement in general, just against those who enter the field and exploit it to expand their own images, egos and build possible Senate runs while using the Constitution to blaze this trail. As Bmaz describes Arpaio:

Joe Arpaio is a two bit carnival barker and huckster, not a dedicated law enforcement official. The opportunistic man came into office running against a fellow Republican and incumbent Maricopa County Sheriff, Tom Agnos, by bad mouthing Agnos and arguing that the entire Maricopa County Sheriff's Department needed to be cleaned up. In fact, Arpaio's winning campaign was predicated upon his willingness to mock the very department he was running to lead and promise to expose the dirty laundry of Agnos and the Sheriff's Department for its involvement in the infamous Buddhist Temple Murder case (link is a fascinating three part story), a seminal case in textbooks on coerced confessions (from the fact that four separate coerced false confessions were obtained to a single crime). Arpaio promised to restore honor to the department, and also swore he would serve only one term in office. Five terms and seventeen years later, Arpaio has failed miserably on both promises.

As Bmaz later points out, Arpaio has reasons to keep pointing to his supposed positive effect in criminal court: to distract from the $42 million plus civil verdicts that have been levied against the Sheriff's Department since he took office.

How does that figure and the number of lawsuits generated against Arpaio's Department compare to other municipalities? Bmaz quotes from this article which concludes:

"New York City, Los Angeles, Chicago, and Houston
, for example, collectively housed more than 61,000 inmates per day last year. From 2004 through November of this year, these same county jails had a combined 43 prison-conditions lawsuits filed against them in federal courts.

In the very same three-year time frame, despite housing a mere 9,200 prisoners per day, Sheriff Arpaio was the target of a staggering 2,150 lawsuits in U.S. District Court and hundreds more in Maricopa County courts.

With a fraction of the inmate population, Arpaio has had 50 times as many lawsuits as the New York, Los Angeles, Chicago, and Houston jail systems combined."

Friday, February 13, 2009

From Cufflinks to Handcuffs

I’ve written before about picking my wife up after work in the summer, but today, with snow falling hard, I picked her up early to avoid a messy commute as a big snowstorm was just beginning to push through town. While parked outside of the large bank building where she works, directly behind an empty police car, I saw a sight that I’m used to seeing every day but which seemed out of place before a bank.

An executive-looking man, probably mid 40’s to 50, with the trademark blue banker suit and red tie, was escorted out of the building, handcuffed, coatless, surrounded by three uniformed officers, as the snow flakes melted against their faces and gathered on their clothes. They paused for a second in front of me, debating about whether to put the guy in the squadcar on the street or the sidewalk side. The guy looked up at me pathetically, wearily, appearing on the verge of tears.

I have no idea who he was and why he has being led out of the bank this way. As much as I’ve occasionally griped that I wished the law applied more equally toward those who work in towers compared to those who wear bluer collars, it wasn’t an easy sight to behold as the guy looked more worn down than my clients typically did as they dragged him out of his job and into the police car.

I’ve been reading Laurence Gonzales’ Everyday Survival off and on and, though it’s not as good as Deep Survival, it’s worth reading. In fact, the last time I wrote about waiting outside the bank watching window washers “play” above me, it brought to mind Gonzales’ descriptions of risk-takers learning to laugh in the middle of risk as a way to concentrate and, thus, survive. (thanks to Mark Bennett for telling me about this great book)

Watching three police officers escort this man into their car, his hands cuffed behind his back, made me think of the way Gonzales described one of the secondary purposes of handcuffing as shaming the arrestee by taking away the appendage that represents our humanity, separates us from animals, the thing we extend to show friendship in offering a handshake.

The description seemed a bit of a stretch when I read it, and I know a lot of police officers would disagree with it, but seeing this banker’s hands locked behind his back as one officer pushed his head down, ducking him into the car revealed that shame and helplessness were obvious and that officer safety wasn’t an issue with an aging banker with three younger cops. In short, the picture was worth a thousand words and brought home the shame that comes when you’re pulled out of your tower with your hands behind your back and driven away with the lights flashing.

I wondered if he’d just been laid off and had “lost it” when he heard the news or if he was charged with embezzlement, or something more along the lines of the crimes I usually defended against.

I wondered if this sight will become more common before we reach the end of this financial crisis, a white-collared executive having to duck into a black and white “police interceptor.”

So bad it's good

From this morning's email, an example of a real "LMAO" Story:

"Every year, English teachers from across the USA can submit their collections of actual analogies and metaphors found in high school essays in order to have them published and sent out for the amusement of other teachers across the country. Recent winners :

1. Her face was a perfect oval, like a circle that had its two sides gently compressed by a Thigh Master.

2. His thoughts tumbled around inside his head, making and breaking alliances like underpants in a dryer without Cling Free.

3. He spoke with the kind of wisdom that can only come from experience, like a guy who goes blind because he looked at a solar eclipse without one of those boxes with a pinhole in it and now goes around the country speaking at high schools about the dangers of looking at a solar eclipse without one of those boxes with a pinhole in it.

4. She grew on him like she was a colony of E. Coli, and he was
room-temperature Canadian beef.

5. She had a deep, throaty, genuine laugh, like the sound a dog makes just before it throws up.

6. He was deeply in love. When she spoke, he thought he heard bells, as if she were a garbage truck backing up.

7. He was as tall as a six-foot, three-inch tree.

8. The revelation that his marriage of 30 years had disintegrated because of his wife's infidelity came as a rude shock, like a surcharge at a formerly surcharge-free ATM machine.

9. The little boat gently drifted across the pond exactly the way a bowling ball wouldn't.

10. From the attic came an unearthly howl. The whole scene had an eerie, surreal quality, like when you're on vacation in another city and Jeopardy comes on at 7:00 p.m. instead of 7:30.

11. Her hair glistened in the rain like a nose hair after a sneeze.

12. Long separated by cruel fate, the star-crossed lovers raced across the grassy field toward each other like two freight trains, one having left Cleveland at 6:36 p.m. traveling west at 55 mph, the other from Topeka at 4:19 p.m. traveling east at a speed of 35 mph.

13. They lived in a typical suburban neighborhood with picket fences that resembled Nancy Kerrigan's teeth.

14. John and Mary had never met. They were like two hummingbirds who had also never met.

15. He fell for her like his heart was a mob informant, and she was the East River .

16. Even in his last years, Granddad had a mind like a steel trap, only one that had been left out so long, it had rusted shut.

17. The plan was simple, like my brother-in-law Phil. But unlike Phil, this plan just might work.

18. The young fighter had a hungry look, the kind you get from not eating for a while.

19. He was as lame as a duck. Not the metaphorical lame duck, either, but a real duck that was actually lame, maybe from stepping on a land mine or something.

20. Her vocabulary was as bad as, like, whatever."

Thursday, February 12, 2009

The Packing Staple

When I was in college I worked as a waiter, then later “moved up” to being a bartender which was a lot less demanding but meant staying up a lot later and missing out on a lot of mornings. Sometimes, as a criminal defense lawyer, I remember those days and feel like I use the skills I learned being a bartender more than those I learned in law school.

A couple weeks ago, as I argued before the Nebraska Court of Appeals, I remembered something that happened while I was waiting on a couple lawyers at lunch, probably twenty years ago. Why did being at the Court of Appeals make me remember the story? We’ll get to that later.

So it’s twenty years ago and I walk up to a table where a couple lawyer-looking guys sit. I tell them the soup of the day, the special and then recognize one. I ask if he’s Wes Mues, he says yes and I tell him I’m John’s son. He says, “Yeah, I remember you, how’s your dad?” We’re in a town of about 20,000 and my dad is a lawyer here too so, even though he might not recognize me, he knows my dad and likely remembers me as the kid, now mostly grown up, who used to cut through the alley by his house every day in the summer on my way to my best friends’ house.

I bring them their ice teas, take their lunch orders, and drop off Mr. Mues’ cup of minestrone, the soup de jour. I leave them alone for a minute and, when I walk back by, they wave, trying to get my attention. I walk up to the table, see that they’re laughing slightly and the other lawyer seems to be encouraging Wes to tell me something. He finally asks, jokingly, if the soup is supposed to come with staples. They’re not being arrogant or messing with their waiter, they’re just jokingly letting me know that the food isn’t like it was supposed to be. I’m confused, wondering what he means by staples and see Mr. Mues reach down to the plate that carries his soup bowl and hold up a brass-colored packing staple dripping with minestrone.

It hits me how serious this could have been and I’m suddenly impressed with the way they laughed instead of complaining, even yelling. I think of how they could have choked, or hurt their teeth or even filed a lawsuit. I apologize profusely, take the tainted soup away and find my boss, the manager. When I tell her the story, I remember the rumors about all the coke she does and start to suspect they’re true as she tells me, seeming not to even care, to “give them a free cup of soup.”

I decide, right then, that she’s incredibly stupid and to do what I know the owner would want me to do: give them a free lunch, knowing that free soup, maybe not even free lunch, won’t stop them from telling all their friends about the packing staples in the soup at the “Peppermill.” The owner has run this place well, so well that he can afford to move to California to open a new restaurant, coming back every month or so to make sure things are running smooth. It hits me that I could be fired for giving away food against the manager’s direction but I decide to take my chances with the owner if I get caught.

I bring them their steak sandwiches, first scanning for stray staples in the sides and they seem happy when I tell them lunch is on the house, telling them how sorry we are and how it’ll never happen again. I tear up the ticket, destroying the evidence that I defied the manager and hope that they don’t talk and that she isn’t paying attention, that they're not distracted by the staple and that she is, by the drugs.

A few months later I’ll realize that the staple was just the “tip of the iceberg” at this place and will take a job as a bartender for the summer, a few months shy of the legal drinking age. I’ll do that job for three years, learning to drink good booze and how to count out the bank after doing a series of Jagermeiser shots. I’ll also learn how much people change when they drink and how much money they’ll drop afterwards. Chuck Cabela will even end up asking me how much I’ll charge him for jumping out of the balcony of the poolside tropical bar I work at to land in the pool down below. I'll say “seventy-five bucks,” he’ll pay it and I’ll pocket the money, along the way subjecting the company to millions in liability to let a drunk rich kid risk his life to impress the dozens of friends he’s surrounded by each time he breaks out daddy’s credit card to go on a drinking spree.

But when you’re 21 and you can make seventy five bucks to watch an early version of “Jackass” live, you do it. At least when you're me. Later, when I decide to go to law school I read that the guy who found the staple, Wes Mues, has not only been appointed to the bench but has even made it to the Nebraska Court of Appeals. I wonder whether he’ll remember the packing staple and think of telling him how I wasn’t supposed to even give him that lunch. I think of asking him, when I end up in front of him someday, whether he remembers the Peppermill long since closed down from, you guessed it, mismanagement.

But I don’t ever get the chance to talk to him again as one day, on his way out of my hometown to a session of the Nebraska Court of Appeals, he will pull out in front of another vehicle, probably thinking about a case, and be struck in mid-turn at the height of his legal career, tragically killed almost instantly.

I read one of his opinions the other day and remember fondly how he treated me when I was his waiter, even when he found a large packing staple in his soup, never forgetting to have a sense of humor or being tempted to blame a person who was likely only the messenger and not the cause.

I remember the other lawyer, still alive, who used to snap his fingers at me when I waited on him, not even self-aware enough to see how patronizing this was or how it reflected on his profession. I vow to try to be more like Wes Mues was to me that day, quicker to laugh, slower to anger, thankful for every free lunch, no matter why it arrived. Thinking back on it makes me hopeful as the polite, driven, level-headed lawyer moved up while the finger-snapping assclown stayed put. I know, there are a lot of examples that refute this general point, but in this case the system seems to have worked.

So what’s the lesson here? I guess it’s be nice to your waiters (no matter what the experts say) and your customers too. You never know where, when or how you’ll end up facing one of them again.